Andrew K. Armbrister v. Melissa H. Armbrister - Dissenting ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
ANDREW K. ARMBRISTER v. MELISSA H. ARMBRISTER
Appeal from the Chancery Court for Greene County
No. 2008-341
No. E2012-00018-COA-R3-CV Filed July 27, 2012
C HARLES D. S USANO, JR., Judge, dissenting.
I do not believe the trial court went outside the parameters of its sound discretion
when it increased father’s co-parenting time from 85 days to 143 days. Unlike many of the
divorce cases we see, this one involves parents who, after the divorce, in the words of the
majority opinion, “maintain[ ] a positive, cooperative relationship with one another regarding
their co-parenting responsibilities.” Even more unique, this case presents a situation where
father’s wife and his former spouse have a “positive relationship.”
The issue before us is whether father has demonstrated a “material change of
circumstance affecting the child[ren]’s best interest.” Tenn. Code Ann. § 36-6-101(a)(2)(C)
(2010). There have been changes – changes that I believe should be viewed in the context
of the unique, amicable relationships presented by the facts of this case. Father has remarried
and, from all indications, this relationship has had a positive impact on the parties and their
children. Father’s work schedule is such that he has more flexibility than at the time of the
divorce. Johnson City, his new home, is a relatively short distance, some 31 miles, from
mother’s residence in Greeneville. I disagree with the majority’s conclusion that father’s
remarriage and change in work schedule were “not unanticipated.” The fact that father was
dating the woman to whom he is now married does not mean that it was anticipated that he
would marry her. The fact that father testified at the time of the divorce that “he might
move” is not the same as testifying that he was going to move. It seems to me that the
subject changes have “affect[ed]” in a positive way “the child[ren]’s best interest” in that
they have made it possible for father and children to have more time together.
I do not believe the significance of father’s remarriage can be overemphasized. This
obviously was a good “move” in terms of father’s continuing good relationship with mother
and the children. While remarriage, “in and of itself,” does not constitute a material change
in circumstance, this does not mean that, in conjunction with other changes, it cannot be
considered as a “change of circumstance.” See Tortorich v. Erickson, 675 S.W.2d 190, 192
(Tenn. Ct. App. 1984).
The change in the quantum of father’s time with the children is reasonably calculated
to “promote the development of a healthy relationship between [the] children” and their
father. See Solima v. Solima, 7 S.W.3d 30, 33 (Tenn. Ct. App. 1998) (citing Aaby v.
Strange, 924 S.W.2d 623, 629 (Tenn. 1996); Taylor v. Taylor, 849 S.W.2d 319, 331-32
(Tenn. 1993); Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct. App. 1996)). Furthermore,
the Supreme Court has clearly spoken on our role in reviewing co-parenting decisions by a
trial court:
It is not the function of appellate courts to tweak a visitation
order in the hopes of achieving a more reasonable result than the
trial court. Appellate courts correct errors. When no error in the
trial court's ruling is evident from the record, the trial court's
ruling must stand. This maxim has special significance in cases
reviewed under the abuse of discretion standard. The abuse of
discretion standard recognizes that the trial court is in a better
position than the appellate court to make certain judgments. The
abuse of discretion standard does not require a trial court to
render an ideal order, even in matters involving visitation, to
withstand reversal. Reversal should not result simply because
the appellate court found a “better” resolution. An abuse of
discretion can be found only when the trial court’s ruling falls
outside the spectrum of rulings that might reasonably result from
an application of the correct legal standards to the evidence
found in the record.
Eldridge v. Eldridge , 42 S.W.3d 82, 88 (Tenn. 2001) (citations omitted). I believe
Chancellor Frierson has made a well-reasoned decision and one that we should not disturb.
I would affirm his decision in toto.
Accordingly, I respectfully dissent.
_____________________________
CHARLES D. SUSANO, JR., JUDGE
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